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United States v. Tragas

United States District Court, E.D. Michigan, Northern Division

May 16, 2017

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
D-10, JOANNE TRAGAS, Defendant-Petitioner.

          ORDER OVERRULING OBJECTIONS, ADOPTING REPORT AND RECOMMENDATION, DENYING MOTION TO VACATE SENTENCE, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING PERMISSION TO PROCEED IN FORMA PAUPERIS

          THOMAS L. LUDINGTON United States District Judge

         On May 22, 2015, Petitioner Joanne Tragas filed a motion to vacate her sentence under 28 U.S.C. § 2255. ECF No. 440. On March 18, 2016, Magistrate Judge Patricia T. Morris issued a report recommending that Tragas's motion be denied in its entirety. ECF No. 466. In lieu of objecting to the report and recommendation, Tragas filed two motions on April 6, 2016. The first motion asked the Court to appoint counsel and requested a 60 day extension of Tragas's deadline to file objections to the report and recommendation. ECF No. 467. The second motion asked the Court to compel one of Tragas's former attorneys, Mr. Busse, to give Tragas her case file and also sought extensive discovery from the Government. ECF No. 468. On May 20, 2016, the Court denied Tragas's motion for appointment of counsel, held Tragas's request for an extension of time to file objections in abeyance pending resolution of her motion to compel, and directed the Government to respond to Tragas's motion to compel. ECF No. 469. After reviewing the Government's response, the Court concluded that the discovery Tragas was seeking was irrelevant to the claims advanced in her habeas petition. Accordingly, the Court denied her motion to compel discovery, but granted her an extension of time to file objections. ECF No. 482. Tragas timely filed objections. ECF No. 483. For the reasons stated below, the objections will be overruled and the report and recommendation will be adopted.

         I.

         In her motion to vacate her sentence under § 2255, Tragas advances twelve grounds for relief. In the first three grounds, Tragas argues that her trial counsel was ineffective during plea negotiations. Mot. Vacate at 2, ECF No. 440, Page ID 3519. In the fourth ground, Tragas argues that her trial counsel improperly failed to inform the Court of a conflict of interest. In ground five, Tragas faults the Court for failing to thoroughly investigate the dissatisfaction she had with her retained attorney prior to trial. In ground six, Tragas argues that her attorneys at sentencing failed to object to erroneous enhancements and inaccurate guideline calculations. In ground seven, Tragas argues that the Government knowingly utilized falsified evidence, in the form of a thumb drive allegedly seized from her residence, at trial. In ground eight, Tragas asserts that her attorneys were ineffective because they failed to inform the Canadian and Greek consulates that Tragas was facing charges. In ground nine, Tragas contends that one of her attorneys destroyed evidence or failed to provide Tragas's next attorney with certain evidence. In the tenth ground for relief, Tragas asserts that the cumulative effects of errors denied her a fair trial. In ground eleven, Tragas argues that her trial counsel should have investigated an illegal search and seizure of her bank account. Finally, Tragas contends that her trial counsel did not properly prepare for or investigate her case. In particular, she asserts that her counsel refused to file a motion to suppress evidence.

         II.

         Pursuant to Federal Rule of Civil Procedure 72, a party may object to and seek review of a magistrate judge's report and recommendation. See Fed. R. Civ. P. 72(b)(2). Objections must be stated with specificity. Thomas v. Arn, 474 U.S. 140, 151 (1985) (citation omitted). If objections are made, “[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). De novo review requires at least a review of the evidence before the magistrate judge; the Court may not act solely on the basis of a magistrate judge's report and recommendation. See Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir. 1981). After reviewing the evidence, the Court is free to accept, reject, or modify the findings or recommendations of the magistrate judge. See Lardie v. Birkett, 221 F.Supp.2d 806, 807 (E.D. Mich. 2002).

         Only those objections that are specific are entitled to a de novo review under the statute. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). “The parties have the duty to pinpoint those portions of the magistrate's report that the district court must specially consider.” Id. (internal quotation marks and citation omitted). A general objection, or one that merely restates the arguments previously presented, does not sufficiently identify alleged errors on the part of the magistrate judge. See VanDiver v. Martin, 304 F.Supp.2d 934, 937 (E.D. Mich. 2004). An “objection” that does nothing more than disagree with a magistrate judge's determination, “without explaining the source of the error, ” is not considered a valid objection. Howard v. Sec'y of Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). Without specific objections, “[t]he functions of the district court are effectively duplicated as both the magistrate and the district court perform identical tasks. This duplication of time and effort wastes judicial resources rather than saving them, and runs contrary to the purposes of the Magistrate's Act.” Id.

         III.

         Tragas has filed twenty-five pages of objections. She appears to object, in general terms, to Judge Morris's analysis of each of her grounds for relief. But the objections are presented in narrative form and, for the most part, do not identify the specific reasoning in the report and recommendation that is being objected to. As explained above, non-specific objections do not trigger de novo review. However, because Tragas is representing herself, her objections will be construed liberally. To the extent possible, they will be addressed in turn.

         A.

         In her first objection, Tragas takes issue with Judge Morris's recommendation that her fifth and seventh claims be dismissed for failure to raise them on appeal. As Judge Morris explained, issues which were not raised on appeal are waived unless the “alleged error constitutes a ‘fundamental defect which inherently results in a complete miscarriage of justice.'” Grant v. United States, 72 F.3d 503, 505 (6th Cir. 1996) (quoting Reed v. Farley, 114 S.Ct. 2291, 2300 (1994)). In her objections, Tragas simply reiterates the substance of her claims in grounds five and seven. As to ground five, Tragas argues that the Court improperly failed to inquire into her degenerating relationship with her attorney, Mr. Weiss. Throughout her case, Tragas received the assistance of five different retained attorneys and two court-appointed attorneys. Needless to say, Tragas frequently expressed displeasure with her representation. But, by Tragas's own representation, the Court gave Tragas an opportunity, on the record, to discuss her frustrations with Mr. Weiss. See Objs. at 2. After Tragas indicated that she was unhappy with Mr. Weiss's representation, the Court directed Mr. Weiss to discuss the issue privately with Tragas. Afterwards, Tragas did not reassert her objection. Now, Tragas argues that this was because she was intimidated by the Court. But even if that is true, Tragas has not shown that the Court's investigation was so deficient as to constitute a complete miscarriage of justice. Likewise, she has not demonstrated that any communication difficulties between Tragas and Mr. Weiss caused actual prejudice to her.

         Similarly, the argument Tragas advances regarding her seventh ground for relief is meritless. In this ground, Tragas argues that the Government offered a thumb drive which was illegally seized from her home as evidence at trial. However, Tragas cannot seek habeas corpus relief on the “ground that evidence obtained in an unconstitutional search or seizure was introduced at [her] trial.” Stone v. Powell, 428 U.S. 465, 494 (1976). For that reason, this ground must also be dismissed.[1]

         B.

         Next, Tragas turns her attention to Judge Morris's analysis of her first three grounds for relief, which allege that her trial counsel was ineffective during plea negotiations. Defendants are entitled to effective assistance of counsel during plea negotiations. Lafler v. Cooper, 566 U.S. 156, 162 (2012). As in all ineffective assistance of counsel challenges, the familiar Strickland v. Washington test applies. Id. (citing 466 U.S. 668). First, the defendant must show “that the counsel's representation fell below an objective standard of reasonableness.” Strickland, 466 at 688. Second, the defendant must show “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

         Here, Tragas is arguing that, but for the ineffective assistance of her trial counsel, she would have entered a plea. In this context, “a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed.” Lafler, 566 U.S. at 164. “[A]s a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.” Missouri v. Frye, 566 U.S. 133, 145 (2012).

         Here, Tragas alleges that her counsel, Mr. Busse, received a plea offer from the Government on January 12, 2010. Objs. at 5. Under the offer, Tragas would serve a 63-78 month sentence. According to Tragas, the deadline to accept the plea was January, 20, 2010, but Mr. Busse did not notify Tragas of the offer until January 29, 2010.[2] On its face, this is sufficient to allege that Mr. Busse's representation was deficient. As explained above, Mr. Busse had a duty to communicate the plea offer to Tragas and allegedly did not do so within the deadline to accept.

         However, even accepting Tragas's allegations as true, she has not alleged facts which would suggest that she was prejudiced by Mr. Busse's delay in relaying the plea offer. She does not contend that she sought to accept the plea offer but was rebuffed because the offer had lapsed. Rather, Tragas contends that her counsel repeatedly told her that, if she proceeded to trial and lost, she would receive only 2 or 3 more years of prison time.[3] Based on that representation, Tragas asserts, she rejected the plea offer (and instructed her attorney to communicate a counteroffer of 2-4 years of prison time).

         But, at the second final pretrial conference, Judge Binder discussed Tragas's rejection of the plea offers with her:

[The Court:] Ms. Tragas, your lawyer says that the - that the government has offered to - a plea agreement to what I would presume to be some of the charges but not all of them. Is that correct?
The Defendant: That's correct.
The Court: I would presume that the plea agreement would involve the dismissal of some of the charges that are made ...

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